Supreme Court Rejecting Cert in Google v. Oracle Adds to Copyright Uncertainty

The Supreme Court decided not to grant certiorari for Google’s appeal of Oracle’s lawsuit against the company over claims that Google copied Oracle’s Java application programming interface (API) technology in its Android mobile operating system. The court didn’t comment on its reasoning for refusing to hear arguments on the case. It said Justice Samuel Alito “took no part in the consideration or decision of this petition.”

The Supreme Court announced its decision Monday, a month after U.S. Solicitor General Donald Verrilli urged it not to hear Google’s appeal of a 2014 U.S. Court of Appeals for the Federal Circuit ruling that APIs are copyrightable (see 1505270036). The Federal Circuit had separately remanded Google's argument that use of APIs qualifies under the fair use doctrine to U.S. District Court in San Francisco, which originally ruled on the 2012 case (see report in the May 12, 2014, issue).

Google said in a statement that it will “continue to defend the interoperability that has fostered innovation and competition in the software industry.” Oracle said in a statement that the Supreme Court’s ruling is a “win for innovation.”

The Supreme Court’s decision against hearing Google v. Oracle dredged up widely repeated concerns among industry stakeholders that allowing the Federal Circuit’s ruling that APIs are copyrightable could have implications for copyright litigation. Industry lawyers said in interviews that it could significantly increase suits over software copyright issues. The Electronic Frontier Foundation, one of several groups that filed amicus briefs on behalf of Google, continues to believe the Federal Circuit “got this one dead wrong, as a matter of law and policy,” Legal Director Corynne McSherry said. “The Supreme Court had an opportunity to clear this up, and it should have taken it. Instead, we can look forward to a lot more unnecessary and expensive litigation."

The Computer & Communications Industry Association continues to believe that the Federal Circuit “got the standard wrong” and that software processes like those included in the Java API are still in the realm of patents, Vice President-Law and Policy Matthew Schruers said. Other U.S. courts have been “pretty clear that the structure of a software program is not protectable,” he said.

Copyright Alliance CEO Sandra Aistars said she believes the Supreme Court made “the right decision” by not agreeing to hear Google’s appeal. “Any other decision would have made it difficult for software to have copyright protection,” which is important because of software’s importance in the U.S. economy, she said.

The disparity between the Federal Circuit’s ruling and other courts’ rulings on the copyrightability of APIs may create a level of uncertainty among industry stakeholders that creates “a risk that this sort of rationale will invite litigation over software copyrights,” Schruers said. “I think everyone agrees that having interoperable software is a good thing, but the question is to what extent can a copyright owner use the copyright to inhibit others from interoperating from that software?” The Supreme Court’s refusal to hear an appeal of Google v. Oracle also creates a risk that “frivolous patent claims” could now be tossed into copyright infringement cases, to bring them before the Federal Circuit, said Public Knowledge Vice President-Legal Affairs Sherwin Siy. The ruling could create within “the Federal Circuit the same situation that’s happened” in U.S. District Court for the Eastern District of Texas, which many cases involving patent assertion entities are brought, he said.

Other industry lawyers said stakeholders should be careful not to read too much into the Supreme Court’s decision. Verrilli “provided several reasons for not granting cert which had little to do with the substance,” including that U.S. District Judge William Alsup hadn’t had a chance to rule in the San Francisco circuit court on the fair use argument, said Jonathan Band of the law firm policybandwidth. “It would be a mistake to read this as a majority of the justices believing the Federal Circuit reached the right result.”

There's potential that Google could prevail based on its fair use argument since the Supreme Court’s decision not to review Google’s appeal means Alsup can review that portion of the case, Schruers and Siy said. “Even if you are copying the literal elements of a thing or if you’re copying the look and feel of the thing, there’s still the question of whether or not it’s actually going to be infringing,” Siy said. “It’s still entirely possible for these uses to be found as not infringing.” Schruers said he also believes that it’s “still possible for Google to prevail in this case based on the fair use argument.”